Chee Soon Juan v PP

• Court: High Court (Singapore)
• Judgment Date: 21 May 2012
• Docket Number: Magistrate's Appeals Nos 373, 374, 375, 378 and 380 of 2010
• Date: 21 May 2012

Chee Soon Juan and others

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 109

Quentin Loh J

Magistrate's Appeals Nos 373, 374, 375, 378 and 380 of 2010

High Court

Criminal Law—General exceptions—Mistake of fact—Police press statement that earlier gathering was not unlawful assembly—Whether officially induced mistake of law was valid defence to unlawful conduct—Section 79 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law—Offences—Unlawful assembly—Police press statement that earlier gathering was not unlawful assembly—Whether appellants ought reasonably to have known that permit was required for subsequent gathering—Rule 5 Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed)

Criminal Law—Offences—Unlawful assembly—Sixth appellant not member of other appellants' political party and not involved in distributing their flyers and selling their T-shirts and other materials—Whether sixth appellant was participating in unlawful assembly—Rule 5 Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed)

The six appellants were each convicted by the district judge (‘the District Judge’) of one charge under r 5 of the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed) (‘Rule 5’) for participating in an assembly intended to demonstrate opposition to the actions of the Government where they knew or ought reasonably to have known that the assembly was held without a permit. The appellants (other than the sixth appellant (‘Mr Yap’)) did not dispute that they participated in the assembly on 9 August 2008 (‘the National Day incident’). It was also common ground that the purpose of the assembly was to publicise the ‘Tak Boleh Tahan’ (‘TBT’) or ‘cannot take it anymore’ campaign organised by the Singapore Democratic Party (‘SDP’) and that the appellants, save for Mr Yap, were distributing flyers and selling T-shirts and other materials relating to the TBT campaign. Of the six appellants, only Mr Yap was not a member of the SDP and was not wearing a red TBT T-shirt that day. Finally, it was not disputed that no permit had been sought and, therefore, none was granted for the holding of the assembly. The District Judge sentenced each of the appellants to a fine of $1,000 (in default one week's imprisonment). The appellants appealed against their conviction and sentence.

Before the District Judge and on appeal, the first appellant (‘Dr Chee’), on behalf of the appellants, argued that they were operating under the belief that they did not need a permit for the National Day incident due to the police's response to a similar event conducted by the SDP to publicise the TBT campaign three months earlier, on 1 May 2008 (‘the May Day incident’) at a nearby location. A day after the May Day incident, a local newspaper carried an article (‘the article’) which reported the police as stating that this incident did not constitute ‘an unlawful assembly or illegal outdoor demonstration’ but ‘may be a case of illegal hawking’.

The issues raised by the appellants were whether: (a)the District Judge erred in finding that the appellants ought reasonably to have known that a permit was required for the National Day incident (‘Dr Chee's defence’); and (b)Mr Yap could be said to have participated in the National Day incident.

Held, dismissing the first to fifth appellant's appeal and allowing the sixth appellant's appeal against conviction:

(1) While Rule 5 was not a strict liability offence, the mental element to be established was limited to the defendant's knowledge of the existence of the permit. The supplementary or additional enquiry as to the defendant's knowledge of the need for a permit was entirely distinct from the mental element envisioned by the wording of Rule 5. Thus in the absence of any wording or statutory intent in support, a pronouncement on the existence of this additional element by way of interpretive devices would be tantamount to a back door ‘import’ of an additional mental element into the offence structure carefully crafted by Parliament - resulting in the burden placed upon the Prosecution being judicially widened. In the present case it was not the function of the court to modify the law in this way and this was certainly not to be done under the guise of the application of traditional principles of construction: at [46].

(2) Regarding the article, it should be noted that the police, who had given the press statement, was the very body which processed applications and decided whether to issue or decline to issue permits to hold public assemblies under Rule 5. However, Dr Chee's defence did not raise a question of fact, to which there would be a valid defence under s 79 of the Penal Code (Cap 224, 2008 Rev Ed) (‘PC’), but a question of law. In spite of learned misgivings by a number of academics, the existence of the legal maxim, ignorantia juris quod quisque scire tenetur non excusat, (ignorance of the law, which everybody was supposed to know, did not afford excuse) had now been too well established and entrenched to be ignored, much less discarded: at [19], [48], [51] and [52].

(3) There were a good number of English authorities for the principle that an officially induced mistake of law was not a valid defence to unlawful conduct where the elements of the offence in question have been established beyond a reasonable doubt. Even if the English authorities on this point were to be ignored in Singapore, the codification of defences in the PC did not allow for the acceptance of a defence of officially induced mistakes of law. Such a defence would be a matter for Parliament to consider as part of the overall scheme of the PC, particularly in light of the significant inroad it would make into the well established principle that ignorance of the law was not an excuse. Consequently, the defence of an ‘officially induced error’ found in the Canadian case of R v Cancoil Thermal Corporation and Parkinson(1986) 52 CR (3 d) 188 was not part of Singapore law: at [53] to [57].

(4) On the facts, the National Day incident and the May Day incident were not materially different from each other. In this respect, the police's response as to why they had managed the two incidents differently was troubling. Nonetheless, there were serious doubts about the reliance that the appellants actually placed on the article. In particular, Dr Chee conceded on cross-examination that he had made a couple of calls beforehand to government agencies to ascertain if a permit was required for the National Day incident. However, he did not identify who he spoke to and what their response was. Turning to Mr Yap, he admitted that he did not read the article. He claimed that he learnt of it from others. He also admitted to only seeing the article for the first time in court: at [24], [58] and [59].

(5) The article did not constitute a waiver of the requirement to obtain a permit. A police communiqué or press statement did not amount to an authoritative statement on whether criminal liability had been made out in a particular instance. Such authoritative pronouncements lay solely with the courts. Further, the police press statement in the present case did not constitute a clear and unambiguous representation that similar future activities would not violate Rule 5: at [61].

(6) A close reading of the relevant English authorities revealed that while the English courts rejected officially induced mistake of law as a defence to liability, they still recommended either a discharge of the sentence imposed or substituted the sentence so as to allow for the defendant's immediate release. In other words, they treated the official-induced mistake of law as a mitigating factor going to sentence. In such circumstances, it might be preferable for the Public Prosecutor to exercise his/her discretion not to prosecute. But that was not within the province of the courts. It should also be cautioned that the facts of this case were distinguishable from those in the English authorities and that the abuse of process doctrine in England was very different from that in Singapore: at [81].

(7) Taking into account the particular facts and circumstances, including their multiple antecedents, the sentences of the first to fifth appellants were not manifestly excessive. Since it was doubtful that the appellants had actually relied on the article, there was also no reason to disturb the sentences on that score: at [82].

(8) Turning to Mr Yap's appeal, it was unclear whether one could equate ‘participation’ under s 34 PC and Rule 5. In the context of s 34 PC, the concept of participation was intricately wedded to the common intention alleged in the charge preferred. However, under Rule 5, the ‘participation’ required of the defendant was specifically in relation to the illegal assembly conducted in ‘any public road, public place or place of public resort’. Thus, unlike s 34 PC where presence at the scene of the crime was not a pre-requisite for a finding of ‘participation’, one could argue that ‘participation’ under Rule 5 required the physical presence of the defendant in the public space in which the illegal assembly was conducted. This difference alone suggested that participation in the context of Rule 5 was different from that under s 34 PC. In any case, it was clear from the recent case of Lee Chez Kee v PP [2008] 3 SLR (R) 447 that ‘participation’ under s 34 PC required the accused to have participated to a sufficient degree to be deemed as blameworthy as the primary offender: at [65].

(9) Mr Yap's acts of, inter alia,shouting ‘Tak boleh tahan’ was not sufficient to establish his participation in the illegal assembly beyond a reasonable doubt. The evidence was that Mr Yap was not an SDP member. He was not wearing a TBT T-shirt, he was not distributing pamphlets...